Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law

The Ninth Circuit Court of Appeals affirmed a district court’s ruling that the County of Maui, Hawaii violated the Clean Water Act by discharging well waters containing pollutants into the Pacific Ocean. The court determined these wells, which had been injected with pollutants, were subject to the National Pollutant Discharge Elimination System (NPDES) regulation. You can read the opinion here.

Factual Background

The wells at issue in this case are owned by the County and operated at a wastewater treatment facility. These wells are the County’s primary means of effluent disposal into groundwater, eventually making its way into the Pacific Ocean. The wastewater facility receives and treats approximately 4 million gallons of sewage per day, servicing 40,000 residents. This sewage is treated before being sold for irrigation or disposed of by injection into the wells.

The court quoted the County’s expert witness regarding the scope of the discharge: “…when the wells inject 2.8 million gallons of effluent per day, the flow of effluent into the ocean is about 3,456 gallons per meter of coastline per day – roughly equivalent of installing a permanently running garden hose at every meter along the 800 meters of coastline.” The effluent from the wells made up as much as one of every seven gallons of groundwater entering the ocean.

The Court’s Discussion

The Clean Water Act (CWA) prohibits discharge of a pollutant, which is “any addition of any pollutant to navigable waters from any point source.” (See 33 U.S.C. § 1251). A “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any . . . well . . . from which pollutants are or may be discharged.” The CWA requires parties making discharges of this nature to obtain an NPDES permit.

Though neither side disputed that the wells constituted “point sources” under the CWA, the County argued that under the CWA, the point source itself must convey the pollutants directly into the navigable waters. Here, the wells discharged into groundwater and therefore indirectly discharged into the Pacific Ocean. The Court joined the Second and Fifth Circuits in holding that an indirect discharge from a point source to a navigable water is enough for CWA liability. The Court also pointed to language from the plurality opinion in Rapanos v. United States, in which Justice Scalia expressed that the CWA forbids the “addition of any pollutant to navigable waters” and not the direct addition. See 547 U.S. 715, 743 (2006).

The Court declined to provide a metric for determining when the connection between a point source and a navigable water is “too tenuous to support liability under the CWA.”